The doctrines of contributory copyright liability and contributory trademark liability are both based on the confluence of basic tort liability and the policy goal of encouraging innovation and commerce. Because the two concepts sometimes conflict, courts have struggled to create a comprehensive body of law to reach a reconciliation. The doctrine of contributory copyright liability evolved through a rich body of case law that was subsequently supplemented by the legislatively enacted Digital Millennium Copyright Act (DMCA). In contrast, the doctrine of contributory trademark liability is a purely common law doctrine and has not witnessed legislative intervention. This article posits that the contributory trademark doctrine has evolved in a parallel manner to the contributory copyright doctrine through judicial common law, with courts imposing liability based on the same principles and factors as those underlying findings of liability in copyright cases. Thus, the same three factors can be identified that consistently distinguish cases of liability from those cases where the courts have not held service providers and distributors liable in both copyright and trademark cases. Namely, courts reach findings of “liability” in cases where: (1) the users known to be attracted to the product/service are dubious; (2) an overriding percentage of uses are infringing; and (3) there is overt bad faith on the part of the service provider.
Rachel N. Agress,
Is There Ever A Reason to Know? A Comparison of the Contributory Liability "Knowledge" Standard for Websites Hosting Infringed Trademarked Content Versus Infringed Copyrighted Content,
5 J. Bus. Entrepreneurship & L.
Available at: http://digitalcommons.pepperdine.edu/jbel/vol5/iss1/7